"She judges you when you use poor grammar." -- David Lat, Above The Law"Ms. Nichols is one of many young people throwing off her generation’s reputation for slovenly language." -- Bob Morris, NYT

Thursday, May 28, 2009

"Until Logic Did Them Apart"

I've been at TNR for a little over a week, and in DC for about two weeks. I'll post pictures and descriptions of things here later, but for now I want to link to Jonathan Chait's article on the illogic of gay marriage opponents.

In it, he says "There's a word for social policy that disregards the welfare of one class of citizens: discrimination."

I tend to agree, so argue with us. Tell me why that's wrong in the gay marriage context.

9 comments:

What constitutes discrimination will be an important question in the upcoming nomination hearings of Sonia Sotomayor. Her comments regarding affirmative action cases have led conservative pundits to label her as a "racist." In another New Republic article, Jeffrey Rosen mentions that Sotomayor was on the bench that decided the recent affirmative action case of Ricci v. DeStefano, which is now being reviewed by the Supreme Court. See http://www.tnr.com/politics/story.html?id=45d56e6f-f497-4b19-9c63-04e10199a085

Unlike race, sexuality has not been deemed a "suspect class" in constitutional law. Thus, distinctions based on sexuality may only be subject to rational basis review. (But see the Iowa Supreme Court case of Varnum v. Brien, treating sexuality as a "semi-suspect" class) In Lawrence v. Texas, the Supreme Court held that a rational basis requires more than a moral belief that something is wrong. But, I urge you to read Justice O'Connor's concurring opinion in Lawrence, which explicitly noted that a law limiting marriage to heterosexual couples would pass rational basis scrutiny as long as it was designed to preserve traditional marriage, and not simply based on the state's dislike of homosexual persons.

O'Connor's opinion seems to indicate that the logic behind opposition to gay marriage is not philosophers' formalistic logic. But, this seems inconsistent with the majority opinion, written by Justice Kennedy, unless we accept a dichotomy between moral reasons and cultural reasons, a dichotomy which itself seems illogical.

Who decides that homosexuals are a "class of citizens"? When does a group of people who exhibit a certain type of behavior become a class of citizens worthy of protection? Can you discriminate against stamp collectors, or are they a class of citizens? What about people who like to cut themselves? If you believe that it's more than a behavior, could you legally discriminate against redheads? If not, what statute would that violate?

Not to mention the disparate treatment of immigrants in this country. Don't you need to be proven to be a criminal before you get deport? apparently not: http://lawblog.legalmatch.com/2009/05/14/most-removed-immigrants-not-criminals-data-shows/

The two phrases in that argument that expose it to an avalanche of unfavorable precedence and inimical interpretation are: "disregards the welfare" and "class of citizens."

There is no precedence (nor sound logic) that lends gay marriage proponents' case credibility. Which is why, to this point, they have mostly lost that legal battle. Of course that doesn't mean they always will, because in reality (outside the parameters of formal inference), the law is often interpreted/bended in ways that are anything but logical.

I've been following your slideshows, nice work. The captions are interesting but not sure that qualifies as real writing. I see that one of the other interns, Elise Foley, got a full article printed, it was really good, you need to catch up!

It's not a logic issue at all to most people, simply because the word "marriage" is so freaking loaded with religious backround. It's not same-sex couples living together that most people object to (they may consider it wrong, but they rarely think it should be illegial), but calling it marriage. I'm opposed to gay marriage, but I'm also opposed to straight marraige (by a government). How about this, the government needs to drop the word marriage, and only give out social contracts. Let the churches marry people as they wish and according to their beliefs. This is already half the way things are.

About Me

I'm a curious little blonde girl with poor impulse control. I love the beach, sun, bright colors, shiny objects and southern accents. I have a law degree from the University of Alabama; sometimes I use it.
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